LINGLE V. CHEVRON USA, INC.*
Sarah B. Nelson**
A quarter century ago, the Supreme Court suggested that a regulation
may be considered a taking if it fails to “substantially advance” a legiti-
mate state interest.1 The phrase developed into a vehicle for attacking
environmental regulations, and particularly local land use ordinances.2 Last
May, a unanimous Court recognized its mistake in surprisingly candid lan-
guage.3 Taking up a highly political controversy, Justice O’Connor made
clear that the “substantially advances” test, while applicable to due proc-
ess, “has no proper place in our takings jurisprudence.”4 Moreover, she
signaled the Court’s intention to avoid interfering with the democratic proc-
ess.5 Even though a concurrence by Justice Kennedy welcomed increased
due process litigation,6 the tone of Lingle rebukes the substantive due
process review characterized by Lochner v. New York.7 Nevertheless, Jus-
tice O’Connor tried distinguishing Nollan v. Cal. Coastal Comm’n and Do-
lan v. Tigard as “adjudicative land-use extractions.”8 If this becomes the
next fortuitously coined phrase in takings jurisprudence,9 Lingle could
create as much doctrinal inconsistency as it resolves. Fortunately, that is
unlikely. Given the political climate surrounding Lingle, courts may choose
to avoid Nollan and Dolan’s inherent contradictions with Lingle by limit-
ing their application. Thus, Lingle can do a great deal to protect all kinds
of environmental regulations from judicial overreaching.
Background
On June 21, 1997, the Hawaii legislature responded to increasing
public concern about gasoline prices by enacting Act 257.10 Act 257 im-
*
125 S. Ct. 2074 (2005).
** J.D. Candidate, Harvard Law School, Class of 2006.
1 Agins v. Tiburon, 447 U.S. 255, 260–63 (1980).
2 See, e.g., Dolan v. Tigard, 512 U.S. 374, 385 (1994); Nollan v. Cal. Coastal Comm’n,
483 U.S. 825 (1987).
3 Lingle v. Chevron USA, Inc., 125 S. Ct. 2074 (2005).
4 Id. at 2083.
5 See id. at 2085 (observing that the courts are not well-suited to “scrutinize the
efªcacy of . . . state and federal regulations.”).
6 Id. at 2087 (Kennedy, J., concurring).
7 198 U.S. 45 (1905) (overturning a legislative limit on working hours on grounds that,
in the Court’s judgment, the policy would not be effective in furthering its stated goal).
8 Id. at 2086; see also Dolan v. Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal
Comm’n, 483 U.S. 825 (1987).
9 Cf. Lingle, 125 S. Ct. at 2074.
10 Chevron USA, Inc. v. Cayetano, 57 F. Supp. 2d 1003, 1004–05 (D. Haw. 1998) [herein-
after Chevron I]; 1997 Haw. Sess. Laws, Act 257, § 3 (codiªed as amended at Haw. Rev.
Stat. § 486H-10.4 (2004)). Notably, this is only one chapter in the political ªght over
gasoline prices in Hawaii. For instance, between 1999 and 2001, the state sued oil compa-
nies over alleged anti-trust violations that inºated gasoline prices. See Anzai v. Chevron
282 Harvard Environmental Law Review [Vol. 30
posed rent controls on the lease of service stations, similar to those tradi-
tionally imposed on residential properties.11 In theory, the rent controls
would lower operating costs for service stations, and in turn, the service
stations would charge Hawaii consumers lower prices.12 Chevron USA, Inc.
(“Chevron”) promptly refuted the efªcacy of Act 257, pointing out, inter
alia, that service stations could simply pocket their savings.13 The owner
of sixty-four Hawaii service stations,14 Chevron sued Hawaii’s governor
and attorney general, alleging Act 257 was an unconstitutional taking
under the Fifth and Fourteenth Amendments.15
Chief Judge Kay found for Chevron on summary judgment. He ac-
knowledged the propriety of efforts to “protect consumers from the harmful
effects of the highly concentrated petroleum market in Hawaii,”16 but found
that “Act 257 as crafted fails to substantially further this legitimate state
interest, and therefore effects an unconstitutional taking.”17 Chief Judge
Kay did not elaborate on takings doctrine, but instead broadly cited ear-
lier Supreme Court decisions.18
On appeal, the Ninth Circuit afªrmed Chief Judge Kay’s ruling with
respect to Chevron’s takings claim, but only after considerably more dis-
cussion.19 Writing for himself and Judge Dorothy Nelson, Judge Beezer
quickly dismissed the suggestion that he should evaluate the law as po-
tentially unconstitutional under the Fifth Amendment’s Due Process Clause,
thus rejecting the application of rational basis review.20 Instead, he looked
Corp., 168 F. Supp. 2d 1180 (D. Haw. 2001) (ruling in favor of Hawaii in partial summary
judgment on a procedural matter); Brandon Masuoka, Gas-Price Lawsuit May Last Three
Years, Honolulu Advertiser, Jan. 28, 1999, at 8B. In 2005, the implementation of gaso-
line price caps brought praise from state Democrats and the advocacy group, Citizens
Against Gasoline Price Gouging, but it prompted state Republicans to canvas gas stations
with warnings about possible price increases and supply shortages. See B. J. Reyes, Gas
Prices Rise Slowly on Initial Day of Cap, Honolulu Star Bull., Sept. 2, 2005, available
at http://starbulletin.com/2005/09/02/news/story3.html.
11 Haw. Rev. Stat. § 486H-10.4 (2004).
12 Chevron I, 57 F. Supp. 2d at 1004, 1009.
13 Chevron initially argued that a desire to protect service station lessee dealers moti-
vated Act 257, rather than any legitimate state interest, but Chief Judge Kay declined the
opportunity to question legislative motives, noting that, “on its face, Act 257 appears to be
directed toward the protection of consumers.” Id. at 1009; see also infra notes 26 and 49.
14 See Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1032 (9th Cir. 1999) [hereinaf-
ter Chevron II]. (detailing the case’s factual history).
15 Chevron I, 57 F. Supp. 2d at 1003.
16 Id. at 1009.
17 Id. at 1004.
18 Id. at 1007 (citing Dolan v. Tigard, 512 U.S. 374, 385 (1994)).
19 Chevron II, 224 F.3d at 1030.
20 Id. at 1034–35 (adding that Chevron failed to advance their due process argument on
summary judgment before the district court, and therefore had procedurally lost this claim).
For a deªnition of the rational basis review standard, see id. at 1033 (deªning this test as
whether “the Legislature rationally could have believed Act 257 would substantially advance a
legitimate purpose” and noticing that courts apply less stringent, rational basis review to
economic regulations).
2006] Lingle v. Chevron USA, Inc. 283
to the more demanding “substantially advances” test21 to identify Act 257
as a regulatory taking under the Fifth Amendment’s Takings Clause.22
Judge Fletcher concurred with the majority’s decision to remand the
case to district court for factual ªndings, but disagreed with its reasoning
on the takings issue.23 Noting that there was no functional difference be-
tween rent control laws like Act 257 and price controls, which would be
challenged under due process, he wrote that “[t]he constitutional test for
ordinary rent control and price control laws is the same [and] essentially
requires that the law be ‘reasonable’ and ‘not conªscatory.’”24 Judge
Fletcher traced the “substantially advances” test to its conception in Agins v.
Tiburon, and argued for limiting it to cases “of severe zoning limitations
on the use of land . . . and required dedications by landowners as a condi-
tion of receiving building permits.”25 He would direct the district court in
Chevron to apply the less stringent rational basis review.26
On remand, Judge Mollway found for Chevron on the facts.27 On the
case’s second appeal to the Ninth Circuit, Hawaii argued for the ªrst time
that Act 257 should be analyzed under the Due Process Clause and its ra-
tional basis review, rather than as a takings case with more probing “sub-
stantially advances” review.28 Unimpressed, Judge Beezer reminded the liti-
gants that the case’s posture precluded this new argument, and further, that
while considering whether Chevron made this argument in the ªrst ap-
peal, the majority stated a preference for the “substantially advances” test,
making it the law of the case.29
21 See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834 (1987) (deªning this test as
whether “the regulation ‘substantially advance[s]’ the ‘legitimate state interest’ sought to
be achieved, not that the State could rationally have decided that the measure adopted
might achieve the State’s objectives”); cf. Glenn E. Summers, Private Property without
Lochner: Towards a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142
U. Pa. L. Rev. 837, 841 (1993) (concluding that this test “does nothing more than create
an exception to the minimum rationality standard of due process”).
22 Chevron II, 224 F.3d at 1035 (citing Richardson v. Honolulu, 124 F.3d 1150 (9th Cir.
1997)).
23 Chevron II, 224 F.3d at 1043 (Fletcher, J., concurring in judgment).
24 Id.
25 Id. at 1044 (citing Agins v. Tiburon, 447 U.S. 255 (1980)); see also Nollan, 483 U.S.
at 834–37; Dolan v. Tigard, 512 U.S. 374, 385–91 (1994).
26 Chevron II, 224 F.3d at 1044–49 (Fletcher, J., concurring in judgment). Judge
Fletcher never directly stated how he would apply rational basis review, but implies that
Act 257 would pass this lower level of scrutiny. Id.; see also supra note 13 and infra note
49.
27 Chevron USA, Inc. v. Cayetano, 198 F. Supp. 2d 1182, 1183 (D. Haw. 2002) [here-
inafter Chevron III] (evaluating a series of complex factual scenarios to ªnd that “Act 257
will not advance the goal of lowering gasoline prices”).
28 Chevron USA, Inc. v. Bronster, 363 F.3d 846, 850 (9th Cir. 2004) [hereinafter Chev-
ron IV].
29 Id. at 850–55; see also Chevron II, 224 F.3d at 1033–36. Curiously, Judge Beezer
looked into Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and distinguished it
by noting “the Court applied the more deferential test [i.e. rational basis review instead of
the ‘substantially advances’ test] only because it involved claims of an actual physical taking.”
Chevron IV, 363 F.3d at 850. This system paradoxically reviews government more strin-
284 Harvard Environmental Law Review [Vol. 30
Hawaii ªled a second petition for certiorari with the Supreme Court.30
This time, the Court granted certiorari and unanimously reversed.31
Justice O’Connor began the opinion by observing that “[o]n occasion, a
would-be doctrinal rule or test ªnds its way into our case law through
simple repetition of a phrase—however fortuitously coined.”32 Her candor
continued, as she wrote that the “substantially advances” test is “tethered
neither to the text of the Takings Clause nor to the basic justiªcation for al-
lowing regulatory actions to be challenged under the Clause.”33
She explained that the “substantially advances” test inappropriately
focuses on the efªcacy of the regulation, and “reveals nothing about the
magnitude or character of the burden a particular regulation imposes upon
private property rights or how the regulatory burden is distributed among
property owners.”34 These factors—magnitude, character, and distribution
of the burden—are the ones to which the courts should look to determine
regulatory takings; they help the court to determine whether the government
action is “functionally equivalent to a classic taking in which government
directly appropriates private property.”35
Justice O’Connor elucidated takings inquiries by separating two ques-
tions: ªrst, whether the case presents a taking; and second, whether the
action is an arbitrary use of government power that would violate the Due
Process Clause.36 In previous cases, these two distinct inquiries have been
gently on regulatory takings than it does for physical takings. The justiªcation commonly
given for this result is that physical takings require just compensation, and therefore need
less review. See Chevron I, 57 F. Supp. 2d at 1008 (citing Midkiff, 467 U.S. at 242). How-
ever, this justiªcation falls apart when you consider that once a court ªnds a regulatory
taking, the government owes full and just compensation identical to what it would owe for
a physical taking. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). While
Lingle clears up this confusion between deªning takings and reviewing due process, this
example shows how rational basis review, not the “substantially advances” test, works in
ordinary physical takings cases.
30 Hawaii had also appealed the Ninth Circuit’s ªrst decision, but the Supreme Court
denied certiorari. Cayetano v. Chevron USA, Inc., 532 U.S. 942 (2001).
31 Lingle v. Chevron USA, Inc., 125 S. Ct. 2074 (2005). Chief Justice Rehnquist and
Justice Stevens joined in the opinion, but did not attend oral argument. See generally Tran-
script of Oral Argument, Lingle, 125 S. Ct. 2074 (No. 04-163).
32 Lingle, 125 S. Ct. at 2077; see also Agins v. Tiburon, 447 U.S. 255, 260 (1980)
(“The application of a general zoning law to a particular property effects a taking if the ordi-
nance does not substantially advance legitimate state interests.”) (emphasis added) (citing
Nectow v. Cambridge, 277 U.S. 183, 188 (1928) (evaluating a potential taking on due process
grounds) and Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 (1978) (same));
Kenneth B. Bley, Substantive Due Process and Land Use: The Alternative to a Takings
Claim, in Takings: Land Development Regulatory Takings after Dolan and Lu-
cas, 289, 290–92 (David L. Callies ed., 1996) (discussing the evolution of takings juris-
prudence with reference to due process cases); Thomas E. Roberts, Regulatory Takings:
Setting Out the Basics and Unveiling the Differences, in Taking Sides on Takings Issues:
Public and Private Perspectives, 1, 5 (Thomas E. Roberts ed., 2002) (discussing the ease
with which one could confuse takings jurisprudence and due process).
33 Lingle, 125 S. Ct. at 2084.
34 Id.
35 Id. at 2082.
36 Id. at 2080–84.
2006] Lingle v. Chevron USA, Inc. 285
conºated by “regrettably imprecise” language.37 The conºation caused
the “substantially advances” test to seep into takings jurisprudence where
“it has no proper place.”38 Rather, the test “prescribes an inquiry in the
nature of due process.”39 Because earlier ªndings relied on inappropriately
applying a due process test to determine a taking, they could not support
a judgment against Act 257.
Teasing out this distinction with logical application, Justice O’Connor
pointed out the “ineffective” and “foolish” result of allowing non-invasive
regulations to qualify as takings merely because a legislature or executive
agency acted ineffectively, when a landowner with identical burdens would
not have suffered a taking (and hence would receive no compensation)
merely because his legislature or executive agency acted in a way that would
effectively serve a legitimate state interest further down the line.40
Justice O’Connor’s opinion also addressed “serious practical difªcul-
ties” that would result if courts had to “scrutinize the efªcacy of a vast array
of state and federal regulations.”41 She wrote that applying the “substan-
tially advances” test as a standard for ªnding regulatory takings “would
empower—and might often require—courts to substitute their predictive
judgments for those of elected legislatures and expert agencies.”42 Noting
the highly political nature of gas prices in Hawaii, she observed that “the
reasons for deference to legislative judgments about the need for, and likely
effectiveness of, regulatory actions are by now well established, and we
think they are no less applicable here.”43
In the ªnal part of her opinion, Justice O’Connor wrote that her can-
did language in Lingle should not be employed to disturb the Court’s prior
holdings.44 She explained away most of the Court’s earlier references to
the “substantially advances” test as mere dicta.45 Nollan and Dolan were
not as easily dismissed; nevertheless, Justice O’Connor distinguished them
on the grounds that they were cases of “adjudicative land use extraction,”
37 Id. at 2083.
38
Id. at 2087.
39 Id. at 2083. However, Justice O’Connor’s carefully chosen language cannot obscure
the fact that other physical takings receive rational basis review. See supra note 29.
40 Id. at 2084.
41 Id. at 2085; see also Reply Brief for Petitioners at 15–20, Lingle v. Chevron USA,
Inc., 125 S. Ct. 2074 (2005) (No. 04-163) [hereinafter Hawaii Brief]; Brief for the United
States as Amicus Curiae in support of the Petitioners, Lingle v. Chevron USA, Inc., 125 S.
Ct. 2074 (2005) (No. 04-163) [hereinafter Government Brief].
42 Lingle, 125 S. Ct. at 2085.
43 Id.; see also supra note 10. In fact, Justice O’Connor considered deference to the
legislature to be so well established that she does not provide any supporting citation. See
Lingle, 125 S. Ct. at 2085.
44 Id. at 2085–86; but see Transcript of Oral Argument, supra note 31 (Scalia, J.) (“So
we have to eat crow no matter what we do. Right?”)
45 Lingle, 125 S. Ct. at 2086.
286 Harvard Environmental Law Review [Vol. 30
functionally equivalent to a physical taking.46 A regulatory action like Lingle
could not fall into this line of precedent.47
Justice Kennedy joined in Justice O’Connor’s opinion, but wrote sepa-
rately to observe that Lingle did nothing to weaken due process jurispru-
dence.48 He explained, “this separate writing is to note that today’s deci-
sion does not foreclose the possibility that a regulation might be so arbi-
trary or irrational as to violate due process.”49
Analysis
A. Lingle in Political Context
Lingle stands out among the Supreme Court’s recent takings deci-
sions both for its unanimity and for its unusual commitment to producing
doctrinally coherent takings standards.50 Early commentators have taken
Lingle as a sign that the Court wishes to move toward moderation.51 Yet,
a complicated political quandary underlies this lucid decision.
Many conservatives, including those on the Court, support the Pri-
vate Property Rights Movement,52 which resists any government interfer-
ence into private property.53 In pure doctrinal form, private property rights
46 Id.; see also Chevron II, 224 F.3d at 1043–44 (Fletcher, J., concurring in judgment).
47 Lingle, 125 S. Ct. at 2086.
48 Id. at 2087 (Kennedy, J., concurring).
49 Id. Neither Hawaii nor Chevron advanced a timely claim for due process review. See
Chevron II, 224 F.3d at 1030; Chevron III, 363 F.3d at 850. This leaves an open question as
to whether Act 257 would pass this less stringent review. See supra notes 13 and 26; but cf.
Brief for the Cato Institute as Amicus Curiae in Support of Respondent, Lingle v. Chevron
USA, Inc., 125 S. Ct. 20074 (2005) (No. 04-163) [hereinafter Cato Institute Brief].
50 See Richard J. Lazarus, Counting Votes and Discounting Holdings in the Supreme
Court’s Takings Cases, 38 Wm. & Mary L. Rev. 1099 (1997); Lingle, 125 S. Ct. at 2082
(noting that “our regulatory takings jurisprudence cannot be characterized as uniªed”);
Timothy J. Dowling, High Court’s Takings Decision Marks Restoration of Logic, Daily J.:
Judges & Judiciary, June 1, 2005, http://www.dailyjournal.com/newswire/index.cfm?sid=
1803714780&tkn=GUEcSNvz&eid=720659&evid=1&scid=37378 (on ªle with the
Harvard Environmental Law Review) (“Law review articles routinely condemn takings
jurisprudence as a ‘muddle,’ a ‘mess’ or worse. . . . Clarity, thy name is Lingle.”); but see
G. Richard Hill, Partial Takings after Dolan, in Takings: Land Development Regula-
tory Takings after Dolan and Lucas, 189, 189 (David L. Callies ed., 1996) (arguing
before Lingle that “in fact it [was] quite simple for the government to steer clear of [regu-
latory] takings problems”).
51 See Dowling, supra note 50; Linda Greenhouse, The Court in Transition the 2004-
2005 Session; Court’s Term a Turn Back to Center, N.Y. Times, July 4, 2005, at A1.
52 See Jay M. Feinman, Un-Making Law 139–41, 145–47 (2004).
53 This view has long been recognized as an impediment to environmental protection.
See Stanley Scott, An Introductory Interpretation, Regulation v. Compensa-
tion in Land Use Context, xi, xiii (1977). In fact, many scholars believe the develop-
ment of the Private Property Rights Movement is a direct reaction to environmental laws.
See, e.g., Alfred M. Olivetti, Jr., & Jeff Worsham, This Land is Your Land, This
Land is My Land: The Property Rights Movement and Regulatory Takings 21–48
(2003); Feinman, supra note 52, at 128–71. For a view of the Private Property Rights Move-
ment applied to environmental law generally, see Nancie G. Marzulla & Roger J. Mar-
2006] Lingle v. Chevron USA, Inc. 287
advocates have proposed compensation for any regulation that interfered
with a property interest.54 While such extreme views have never been widely
credited,55 the Private Property Rights Movement has received varying
degrees of endorsement in Court opinions.56
In fact, most of the success enjoyed by the private property rights
movement has been in the courts,57 which is not surprising considering the
restrictive limits private property rights advocates place on legislatures
and executive agencies. This creates an acute tension between the so-
called political branches and the judiciary. It charges the courts with scruti-
nizing delicate political decisions even in cases where legislatures or ad-
ministrative agencies applied all of the proper democratic protections and
procedures. Lingle vividly illustrates this tension: years of heated debate
in the state legislature,58 politicians running from car to car with pamphlets
at gas stations,59 countless citizen editorials in the local press60—all to be
resolved by a single federal judge in a detached courtroom. This does not
sit well with conservatives who pride themselves on judicial restraint, sepa-
zulla, Property Rights: Understanding Government Takings and Environmental
Regulation (1997). For a view of the Private Property Rights Movement speciªc to
Lingle, see Cato Institute Brief, supra note 49.
54 See generally Richard Epstein, Takings: Private Property and the Power of
Eminent Domain (1985).
55 See Lingle v. Chevron USA, Inc., 125 S. Ct. 2074, 2085 (2005) (“[W]e have long
eschewed such heightened scrutiny when addressing substantive due process challenges to
government regulation.”).
56 See Mark Tushnet, A Court Divided: The Rehnquist Court and the Future
of Constitutional Law 279–302 (2005).
57 See Feinman, supra note 53, at 144–45 (noticing the lackluster record of takings initia-
tives in the political branches); Peter A. Buchsbaum, Should Land Use be Different? Reºec-
tions on Williamson Co. Reg’l. Planning Bd. v. Hamilton Park, in Taking Sides on Tak-
ings Issues: Public and Private Perspectives 471, 471–72 (Thomas E. Roberts ed., 2002)
(reporting on the backlash against private property rights advocates by municipal govern-
ments and state legislators); Government Brief, supra note 41 (explaining why the execu-
tive branch and administrative agencies do not like aggressive property rights). However,
the Private Property Rights Movement has advocates in the other branches of government.
See R. G. Converse, Property Rights Legislation: Some Questions, in Takings: Land De-
velopment Regulatory Takings after Dolan and Lucas, 255, 255–65 (David L.
Callies ed., 1996) (brieºy discussing legislative developments in a more positive light);
Olivetti & Worsham, supra note 53, at 73–116 (providing a detailed discussion of legis-
lative private property rights initiatives at the federal level). Some initiatives promoting
takings analysis in decision-making have passed. See Marzulla & Marzulla, supra note
53, at 163–78 (focusing on a Reagan-era Executive Order and state action). However, pro-
posals for Fifth Amendment-like compensation almost always fail. See Feinman, supra
note 52, at 128–71.
58 See Hawaii Brief, supra note 41, at 18.
59 For a description of the on-going dispute over gas prices, see Reyes, supra note 10.
60 For a representative sample from a recent month in the ongoing dispute, see Carlito
P. Caliboso, Op-Ed, Ups and Downs of the Gas Cap, Honolulu Star Bull., Oct. 2,
2005, available at http://starbulletin.com/2005/10/02/editorial /commentary2.html; Edito-
rial, Gas Prices Warrant FTC Investigation, Honolulu Star Bull., Oct. 3, 2005, avail-
able at http://starbulletin.com/2005/10/03/editorial /editorials.html; Frank Young & Jim
Wheeler, Op-Ed, Gas Cap Is Forcing Isle Prices to Fluctuate, Honolulu Star Bull., Oct. 2,
2005, available at http://starbulletin.com/2005/10/09/editorial /commentary.html.
288 Harvard Environmental Law Review [Vol. 30
ration of powers and ªdelity to an originalist notion of democracy61—even
conservatives who would otherwise support private property rights.
Justice Scalia is more closely associated with the property rights
movement than any of his colleagues,62 and he has often articulated his
staunch commitment to private property rights,63 even in the face of his
stated preference for originalist constitutional interpretation. Still, Justice
Scalia rejects Lochner-like substantive due process.64 When asked to choose,
Justice Scalia—alongside Chief Justice Rehnquist and Justice Thomas—
quietly added his vote to overrule aggressive judicial review of political
action. This decision on the part of Court conservatives strongly indicates
that future regulations will not be disturbed with probing substantive due
process inquires.
Looking at the direction of takings jurisprudence, Court watchers also
keep a careful eye on the moderates, particularly Justice Kennedy.65 In
Lingle, his role was the most intriguing. His concurrence invited a more
probing due process inquiry that, while unpopular, has never expressly
been overruled.66 Aware of this danger, early commentators have pointed
out that a reversion to Lochner would cause exactly the problem that the
Lingle Court wished to avoid: intrusive judicial review that prevents de-
mocratic rule.67
61 See Feinman, supra note 52, at 164–68 (criticizing “conservative mythmaking about
the long standing, fundamental nature of property rights”); Tushnet, supra note 56, at
283–85 (remarking on how takings deviate from original constitutional interpretation);
Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1028 n.15 (1992) (stating that the founding
fathers did not envision regulatory takings as part of the Fifth Amendment); but see Dowling,
supra note 50 (noting that Lingle properly characterizes the original understanding).
62 See Lazarus, supra note 50, at 1118–19 (“None could contend that Justice Scalia has
not adhered to a ªrm position in the regulatory takings cases. Property owners have no
greater ally on the Court.”).
63 See id.; see also Feinman, supra note 52, at 159 (noticing that Justice Scalia is con-
siderably to the right of center when interpreting private property rights).
64 See Dowling, supra note 50. See also Lochner v. New York, 198 U.S. 45 (1905); but
see Lazarus, supra note 50, at 1118–19 (noticing that Scalia has sometimes overlooked con-
cerns about overriding democratically elected branches in his takings decisions).
65 See Lazarus, supra note 50, at 1101, 1108.
66 Lingle v. Chevron USA, Inc., 125 S. Ct. 2074, 2086 (2005) (Kennedy, J., concurring);
cf. Lochner, 198 U.S. at 74–76 (Holmes, J., dissenting). “Moderate” sheepskin aside, Jus-
tice Kennedy may be a subtle extremist on this point. See Lazarus, supra note 50, at 1108–
09 (noticing that Justice Kennedy tends to favor Lochner-like review in defense of property
rights); Posting of Paul Utrecht, paulzulpc.com, to SCOTUSBlog, http://www.scotusblog.
com/movabletype/mt-tb.cgi/366 (May 28, 2005, 23:00 EST) (on ªle with the Harvard En-
vironmental Law Review) (“I hope there are more than half a dozen people interested in
Lingle, because it may be a critical turning point in constitutional law.”); but see also Mi-
chael M. Berger, Though No Blockbuster, Lingle Disentangles Takings, Process, Daily J.:
Judges & Judiciary, June 1, 2005, http://www.dailyjournal.com/newswire/index.cfm?sid=
1803714780&tkn=GUEcSNvz&eid=720658&evid=1&scid=37378 (on ªle with the Har-
vard Environmental Law Review) (supporting Lochner-like review, trivializing concerns about
interference with democratic rule by focusing on injury to politicians’ ego, and side-stepping
serious separation of powers questions).
67 See Utrecht, supra note 66 (“Ultimately, the governments may regret their victory in
Lingle. If the Due Process Clause is given teeth, it will truly affect each and every piece of
2006] Lingle v. Chevron USA, Inc. 289
However, considering the political climate that gave birth to Lingle,
this turn is extremely unlikely.68 Hardcore property rights advocates may
want the most intrusive review possible for environmental regulations and
land use restrictions, but most liberals and conservatives do not want the
courts to unreasonably interfere with the good-faith predictions of the
political branches. Justice Kennedy’s invitation to due process claimants
may evolve into a clearer due process test, but Lochner will remain a text-
book story on the importance of not interfering with democracy.
What will develop from Lingle is a more coherent takings jurispru-
dence.69 The “substantially advances” test acted as a crutch through which
litigants and courts could avoid the mystifying Penn Central test for de-
termining whether a taking has occurred.70 With the crutch gone, the Su-
preme Court will have to end academic debates about the feasibility of a
Penn Central analysis and show us how it is done.
legislation.”); Dowling, supra note 50 (commenting on the “bizarre” and contradictory
nature of this possible result); Bley, supra note 32, at 289–97 (“[S]eeking relief for a viola-
tions of the due process clause removes some—but not all—of [the] hurdles [associated
with a takings claim].”).
68 Lingle, 125 S. Ct. at 2086; see also Daniel L. Siegel, With Lingle, Supreme Court
Finally Lets Lochner Rest in Peace, Daily J.: Corp., June 2, 2005, http://www.dailyjournal.
com/newswire/index.cfm?sid=1806483362&tkn=kyRonAYy&eid=721116&evid=1&sci
d=35916 (on ªle with the Harvard Environmental Law Review). For an argument that shying
way from Lochner might not be desirable, see Douglas W. Kmiec, At Last the Supreme
Court Solves the Takings Puzzle, in Takings: Land Development Regulatory Takings
after Dolan and Lucas, 107–18 (David L. Callies ed., 1996).
69 Lingle may be one of the rare legal moments in which clarity is truly value-neutral.
At least one special interest group picked up on this fact while trying to mask a defeat with
cries of victory. See Brief for the National Home Builders Association as Amicus Curiae in
support of the Respondents, Lingle v. Chevron USA, Inc., 125 S. Ct. 20074 (2005) (No. 04-
163); Press Release, National Home Builders Association, Supreme Court Clariªes Consti-
tutional Property Rights in Lingle v. Chevron (May 23, 2005) (on ªle with the Harvard
Environmental Law Review); see also Dowling, supra note 50 (“If this is a win for takings
claimants, state and local ofªcials would happily welcome more of the same.”). Inciden-
tally, another popular coping strategy for private property rights advocates is denying Lingle’s
effect. See Berger, supra note 66 (acknowledging that Lingle “untangled a quarter-century-
old jurisprudential knot” and that substantive due process “lurk[s] below” but insisting that
it is not “a blockbuster decision”).
70 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (determining that
a building restriction aimed at historical protection was not a regulatory taking and listing
factors that contributed to this determination while indicating that such analysis required
case-by-case inquiries as “this Court quite simply has been unable to develop any ‘set
formula’ for determining when ‘justice and fairness’ require that economic injuries caused
by public action be compensated by the government”); Roberts, supra note 32, at 7–8 (not-
ing that Agins came in the wake of Penn Central and heavily implying a lack of clarity in
the earlier case lead to the “substantially advances” test); John D. Echeverria, Do Partial
Regulatory Takings Exist?, in Taking Sides on Takings Issues: Public and Private Per-
spectives, 219–50, 230 (Thomas E. Roberts ed., 2002) (noting that “there are substantial
grounds for questioning whether the Penn Central multifactor test represents a coherent
standard for evaluating whether regulations amount to takings”); Summers, supra note 21,
at 873–78 (summarizing debate over whether this is a true balancing test or “merely . . . ad
hoc factual determinations” and arguing for the latter).
290 Harvard Environmental Law Review [Vol. 30
B. The Future for Nollan and Dolan
Despite Lingle’s clarity, it leaves “land-use extraction” twins Nollan
and Dolan71 in a remarkably precarious position.72 Justice O’Connor, and
Judge Fletcher before her, kept them explicitly distinct from the case at
hand.73 Yet, “substantially advances” is a due process inquiry,74 and a
thoughtful analysis shows no relevant substantive due process distinction
between “adjudicative land-use extraction” and legislative regulations like
Act 257.
To force the distinction between Lingle and “adjudicative land-use ex-
traction” cases, Justice O’Connor made much of the fact that Nollan and
Dolan, unlike Lingle, require property owners to physically alter the use of
their land.75 The emphasis on the physical nature of the taking appeals to
Lockeans or romantics,76 but it is a technicality in a modern world where
value is fungible and economic considerations dominate our thinking.77 To
see how ineffective the distinction is, imagine that Hawaii had mandated
that Chevron dedicate ªve square feet of each service station to the pres-
ervation of native plants. Would putting service station soil to work for
71 It is well established that these cases counteract important environmental initiatives.
See Srinath Jay Govindan, Note, “Taking” Steps to Protect Private Property and Endan-
gered Species: Constitutional Implications of Habitat Conservation Planning after Dolan
v. Tigard, 47 Emory L.J. 311 (1998) (discussing the dangers Dolan posed to the Endan-
gered Species Act pre-Lingle); Editorial, Judicial Takings and Givings, Wash. Post, May
28, 2005, at A24 (“Lingle is important, because in it the court repudiated a dangerous doc-
trine in had articulated [in Agins], a doctrine with horrid implications for environmental
and other regulatory enforcement.”).
72 Both Nollan and Dolan found regulatory takings in cases in which local planners at-
tached restrictions and requirements while issuing building permits. Using the Agins “sub-
stantially advances” language the Court found that the land use requirements were takings,
because the planners failed to show an “essential nexus” between the regulations and their
stated legitimate purposes. See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834–37 (1987)
(providing background and reasoning through the facts); Dolan v. Tigard, 512 U.S. 374,
385–91 (1994) (same); see also Edward J. Sullivan, Return of the Platonic Guardians:
Nollan and Dolan and the First Prong of Agins, 34 Urb. Law. 39, 40 (2002) (noting that
Nollan and Dolan “turn solely” on the ªrst prong of Agins); see also Siegel, supra note 68.
73 See Lingle v. Chevron USA, 125 S. Ct. 2086 (2005); Chevron II, 224 F.3d at 1044
(Fletcher, J., concurring in judgment).
74 Lingle, 125 S. Ct. at 2086.
75 Id.; but see Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (emphasizing that a ªnd-
ing of a taking turns on the degree of the interference with the right, and not the character
of the property at issue); see also Chevron IV, 363 F.3d at 850 (pointing out that other physical
takings receive rational basis review).
76 See generally James R. Stewart, Property, the Common Law, and John Locke, in Natu-
ral Law and Contemporary Public Policy 193, 193–218 (David F. Forte ed., 1998).
77 See aao r o3(iLin5(k4(g)(a)1e)8(id 3.7v)-t) g3d
2006] Lingle v. Chevron USA, Inc. 291
the public good really be more of a burden on Chevron than economic regu-
lations that control its commercial transactions?78
Perhaps the magic word is “adjudicative.”79 One of the most striking as-
pects of Nollan and Dolan is the personally tailored nature of the “land-
use exactions,”80 and the word “adjudicative” calls to mind the long-estab-
lished doctrine of Londoner and Bi-Metallic, which distinguishes between
cases in which decisions have general application and those in which the
decisions affect only a few individuals.81 Prior to Lingle, some scholars had
already reviewed administrative practice with respect to takings law, and
explored relevant differences between legislative action like that in Lingle,
and the action by administrative agencies like that in Nollan and Dolan.82
However, Lingle makes clear that the “substantially advances” test is
substantive—not procedural—due process.83 The administrative practice
cases did not involve evaluating the wisdom behind any particular regula-
tions.84 Instead, they asked a more fundamental question—whether this was
a legitimate mechanism for making law. If one seriously believed that
administrative agencies were inappropriately distributing public burdens
through the nature of their design, desultory substantive review of particular
land-use extraction cases would be wholly inadequate to satisfy the Fifth
Amendment. Indeed, the very existence of agency adjudication would be
called into question.
78 One might rightly point out that this analysis questions whether Nollan and Dolan
should be considered “takings.” See Sullivan, supra note 72, at 52 (“Nowhere in Nollan or
Dolan is there any examination of whether the property has been ‘taken’ in any sense peo-
ple would ordinarily attribute to that word.”). But even assuming Nollan and Dolan are cate-
gorical takings, the argument reveals that there is nothing special about “land-use” cases
that requires heightened due process scrutiny.
79 Lingle, 125 S. Ct. at 2086.
80 Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); Dolan v. Tigard, 512 U.S. 374
(1994).
81 Londoner v. Denver, 210 U.S. 373 (1908) (ªnding a tax too speciªc to be quasi-legisla-
tive and therefore not general administrative rule-making); Bi-Metallic Investment Co. v.
State Bd. of Equalization of Colo., 239 U.S. 441 (1915) (ªnding a tax general enough to be
considered quasi-legislative administrative rule-making); see also Administrative Proce-
dure Act, 5 U.S.C. § 551(5), (7) (2004) (deªning “rule making” and “adjudication”).
82 See Sullivan, supra note 72, at 71 (applying these administrative law principles to
the takings problem and arguing that “arbiters of this balance must not be Supreme Court
Justices, but rather the legislators and their agencies, in decisions made within the adminis-
trative process, and subject to administrative review”); Breemer, supra note 77, at 405–07
(arguing that the legislative-adjudicative distinction is hard to apply to takings in a mean-
ingful way); Fred Bosselman, Dolan Works, in Taking Sides on Takings Issues: Public
and Private Perspectives 345, 348 (Thomas E. Roberts ed., 2002) (taking a functionalist
approach to defend the exaction practices in Dolan, and showing that “the legislative-adju-
dicative distinction is irrelevant” in this context); but see Kmiec, supra note 68, at 377
(asserting that “some nominally legislative land-use actions are really administrative or adju-
dicatory in character and merit closer review or specialized procedural protections to avoid
the disproportionate singling out of particular landowners” but offering no additional ex-
planation).
83 See Lingle, 125 S. Ct. at 2082–83; supra note 21.
84 See supra note 81.
292 Harvard Environmental Law Review [Vol. 30
This is not the direction taken by Justice O’Connor in Lingle; instead,
she explained that takings inquiries focus on the burden felt by the prop-
erty owner, which does not change if a different branch of government acts,
just as it does not change when the government has a different purpose or
achieves higher efªcacy.85 Assuming you have identical regulations, a skill-
fully crafted “essential nexus” does nothing to lessen a property owner’s
burden; nor does replacing an administrative ofªcial’s signature with a
legislative vote. Naturally, disproportionate burdens are a concern,86 but ra-
tional basis review provides adequate protection. It unfairly discredits ad-
ministrative agencies to suggest that their actions should incur unusually
high judicial scrutiny, when the same action by a legislature would receive
mere rational basis review.87
Asking courts to “substitute their predictive judgments for those of
elected legislatures and expert agencies” and to “scrutinize the efªcacy of
a vast array of state and federal regulations”88 deserves a sound and explicit
justiªcation absent from Nollan and Dolan.89 Justice O’Connor should
have extended her Lingle reasoning to make this point rather than cautiously
protecting wrongly decided90 precedent. But even without an explicit over-
ruling, Lingle fatally undercuts Nollan and Dolan.91 It also signals the
Court’s realization that the political branches are better left alone.
Before this opinion, courts readily applied the “substantially advances”
test.92 Now, lower courts concerned with precedent should hesitate to rely
on it, and perhaps disregard Nollan and Dolan all together. Lingle rein-
forces a political atmosphere in which both liberals and conservatives disfa-
85 Cf. Lingle, 125 S. Ct. at 2084.
86 See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (noting
that the takings’ burden should not be disproportionately concentrated).
87 The suggestion also shows that determining a taking and reviewing due process are
highly conºated in Nollan and Dolan. Cf. Lingle, 125 S. Ct. at 2082–83.
88 Id. at 2086.
89 For an idea of what such a sound and explicit justiªcation would look like, see gen-
erally Judith A. Baer, Equality Under the Constitution: Reclaiming the 14th
Amendment (1983) (discussing suspect classes that deserve heightened scrutiny).
90 See Sullivan, supra note 72, at 49 (remarking that in Dolan, as in Nollan, “the Court
has made a serious error by abandoning the traditional presumption of constitutionality and
imposing a novel burden of proof. . . . [and] the Court was reverting to territory it had long
since rightly abandoned”).
91 Cf. Skinner v. Oklahoma, 316 U.S. 535, 538 (1942) (cautiously endorsing Buck v.
Bell, 274 U.S. 200 (1927) while destroying its logical foundation); William Shakespeare,
Hamlet act 1, sc. 5 (“That one may smile and smile and be a villain.”).
92 See Breemer, supra note 77, at 381–82 (observing that “unlike the Court’s other regula-
tory takings tests . . . the essential nexus standard is routinely enforced beyond the halls of
the High Court”); but see Sullivan, supra note 72, at 40 (noting that outside Nollan and
Dolan the Supreme Court has never “seen ªt to impugn a land-use ordinance as a taking on
the basis that it failed to substantially advance legitimate state interests”); Murray Feldman
& Michael J. Brennan, Judicial Application of the Endangered Species Act and the Impli-
cation for Takings of Protected Species and Private Property, in Private Property and
the Endangered Species Act, 25, 38 (Jason F. Shogren ed., 1998) (“Despite the political
discourse that has linked the constitutional takings/ private property debates, there has
been little litigation addressing the subject under the Endangered Species Act.”).
2006] Lingle v. Chevron USA, Inc. 293
vor probing judicial review. Declining to apply the “substantially advances”
test in future cases can avoid the inherent contradictions that arise when
one tries to reconcile Nollan and Dolan with Lingle. Thus, Lingle may de-
velop additional signiªcance as legal victory for environmentalists, who
depend on regulations and land-use restrictions in their efforts to protect
human health, preserve endangered species and safeguard natural resources.